Colorado Supreme Court rules Trump can’t run again in state for inciting the Jan. 6 insurrection

The Colorado Supreme Court on Tuesday ordered former President Donald Trump to be barred from the state’s 2024 presidential ballot under a Civil War-era insurrection clause, in a historic ruling certain to be promptly appealed to the nation’s highest court.

Six Republican and unaffiliated Colorado voters, backed by the nonprofit Citizens for Responsibility and Ethics in Washington, filed a lawsuit in September alleging that Trump’s actions in relation to the Jan. 6 attack on the U.S. Capitol disqualify him from office under the 14th Amendment to the Constitution.

Section 3 of the amendment, ratified in 1868 and enforced in only a handful of cases in the last 150 years, prohibits a person who “engaged in insurrection” after taking an oath to support the Constitution from holding office again.

“A majority of the court holds that President Trump is disqualified from holding the office of President under Section 3 of the 14th Amendment to the United States Constitution,” the court wrote in its ruling. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”

In the court’s 4-3 decision, Justices Monica Márquez, William Hood, Richard Gabriel and Melissa Hart made up the majority, while Chief Justice Brian Boatright and Justices Carlos Samour and Maria Berkenkotter dissented. All seven justices on the state Supreme Court were appointed by Democratic governors.

“We do not reach these conclusions lightly,” justices in the majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

The ruling, however, includes a stay of the court’s order that will last until Jan. 4, or until the outcome of a widely anticipated appeal to the U.S. Supreme Court is decided.

“If review is sought in the Supreme Court before the stay expires on Jan. 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court,” the opinion said.

Colorado Secretary of State Jena Griswold, a Democrat and outspoken Trump critic, has declined to take a position on the former president’s ballot eligibility, and her office has held off on certifying his candidacy “pending a determination from the courts.”

“Jan. 5 is the statutory deadline to certify the Presidential Primary Ballot,” a spokesperson for Griswold said Tuesday. “The Secretary will follow whatever Court guidance is in place when that date arrives.”

‘Historic and justified’

The court’s decision followed a flurry of amicus briefs and oral arguments before the justices earlier this month. It overturned the key part of a Nov. 17 ruling by Denver District Court Judge Sarah B. Wallace, who ruled that although Trump “engaged in insurrection,” Section 3 of the 14th Amendment did not apply to the office of president, and ordered Griswold to place Trump on the ballot.

Similar challenges in several other states, including Minnesota and Michigan, have been rejected by the courts. But Colorado was singled out by CREW as a “good venue” for a 14th Amendment case because of provisions in its election code requiring only candidates who are eligible to assume office to be placed on the ballot.

In a press release, CREW president Noah Bookbinder said that Tuesday’s ruling “is not only historic and justified, but is necessary to protect the future of democracy in our country.”

“Our Constitution clearly states that those who violate their oath by attacking our democracy are barred from serving in government,” Bookbinder said. “It has been an honor to represent the petitioners, and we look forward to ensuring that this vitally important ruling stands.”

Dozens of Republican state attorneys general and party officials petitioned the court in amicus briefs this month to dismiss the 14th Amendment claims, which they said would lead to an “unworkable patchwork of eligibility requirements for President.”

Trump was indicted earlier this year by federal prosecutors who allege that his “pervasive and destabilizing lies” about the results of the 2020 election “targeted a bedrock function of the United States federal government.” Since announcing that he would seek the presidency again in 2024, he has maintained a substantial polling lead over his rivals for the GOP nomination.

In a statement, Trump campaign spokesperson Steven Cheung called the ruling part of a “scheme to interfere in an election on behalf of Crooked Joe Biden.”

“We will swiftly file an appeal to the United States Supreme Court and a concurrent request for a stay of this deeply undemocratic decision. We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these un-American lawsuits.”

The decision was swiftly condemned by top Republicans, including several of Trump’s rivals for the nomination. GOP hopeful Vivek Ramaswamy said he would withdraw from the Colorado primary contest “unless Trump is also allowed to be on the state’s ballot,” and demanded other candidates do the same. Republican House Speaker Mike Johnson of Louisiana decried what he called a “thinly veiled partisan attack.”

“Regardless of political affiliation, every citizen registered to vote should not be denied the right to support our former president and the individual who is the leader in every poll of the Republican primary,” Johnson wrote on X. “We trust the U.S. Supreme Court will set aside this reckless decision and let the American people decide the next President of the United States.”

At least one top Colorado Democrat praised the court’s decision.

“The Colorado Supreme Court has it right,” U.S. Rep. Jason Crow of Aurora wrote in an X post. “The Constitution protects the right to vote and bars candidates who abuse the process or engage in insurrection. Donald Trump has done both.”

An ‘officer of the United States’

In her Nov. 17 ruling, Wallace sided with Trump’s attorneys in holding that Section 3’s reference to “officers of the United States” did not include the presidency. That argument was first put forward in a 2021 paper by conservative law professors Josh Blackman and Seth Tillman.

“It appears to the Court that for whatever reason the drafters of Section 3 did not intend to include a person who had only taken the Presidential Oath,” Wallace wrote, citing the clause’s lack of specific reference to the presidency and the different oaths that the Constitution prescribes for presidents and other officers.

That interpretation ran contrary to the opinion of most experts and the historical record, said Gerard Magliocca, a scholar of 19th-century constitutional law, during trial testimony last month. Several state Supreme Court justices voiced skepticism about Blackman and Tillman’s argument during oral arguments on Dec. 6, and Tuesday’s ruling, while affirming many of Wallace’s other findings, soundly rejected the theory.

“President Trump asks us to hold that Section 3 disqualifies every oathbreaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land,” justices in the majority wrote. “Both results are inconsistent with the plain language and history of Section Three.”

None of the three dissents filed by justices in the minority endorsed Blackman and Tillman’s argument or sought to dispute Wallace’s finding that Trump engaged in insurrection. Instead, they faulted the rushed timeline of the proceedings under state law, which Samour wrote “flies in the face of the due process doctrine,” and challenged the majority’s holding that Section 3 is “self-executing” and does not require an act of Congress to be enforced.

“The questions presented here simply reach a magnitude of complexity not contemplated by the Colorado General Assembly for its election code enforcement statute,” Boatright, who has served as the court’s chief justice since 2021, wrote in his dissent.

Derek Muller, a Notre Dame law professor who has followed the case closely, called the Colorado decision a “major and extraordinary holding” that will require the U.S. Supreme Court “to step into the thorniest of political thickets.”

“There are a dozen ways the Court could go. And there is no question this is a big, big deal,” Muller said in an email. “State law requires the secretary certify names by Jan. 5, 2024, and while it’s possible to bump beyond that, practical ballot printing deadlines will quickly approach, and the holidays mean any review will be more truncated.”

Colorado’s 2024 presidential primary is scheduled for “Super Tuesday,” March 5.

Editor’s note: This story first appeared on Colorado Newsline, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.